Ryan

Venue question - Answering Summons under simplified civil procedure

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I received a summons and complaint for a credit card.  The plaintiff is the creditor from Colorado and their attorney is out of Denver.  They stated the venue is Weld County because I live there and the payments were to be made in Weld county.  I have never lived in Weld county and the payments were never to be made in Weld county.  How big of deal is this and should I deny the venue in my answer?  

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52 minutes ago, Ryan said:

I received a summons and complaint for a credit card.  The plaintiff is the creditor from Colorado and their attorney is out of Denver.  They stated the venue is Weld County because I live there and the payments were to be made in Weld county.  I have never lived in Weld county and the payments were never to be made in Weld county.  How big of deal is this and should I deny the venue in my answer?  

Please copy and answer the questions in the following link.

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

In addition, did you open the credit card account?   Is this a business or personal account?

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Hey Ryan, 

Improper venue is one of my favorite arguments to throw at creditors when they sue, but be aware that it's not a slam dunk argument. 

15 U.S. Code § 1692i(a) is used for the determination of proper venue: 

Quote

(a) VenueAny debt collector who brings any legal action on a debt against any consumer shall—
     (1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a
            judicial district or similar legal entity in which such real property is located; or
     (2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—
           (A) in which such consumer signed the contract sued upon; or
           (B) in which such consumer resides at the commencement of the action.

Because you said this is for a credit card debt, (a)(1) would not be applicable and you would need to refer to (a)(2) for your case. 

Which county were you living in when you originally applied for and received the credit card? Which county are you currently living in? If neither of these are Weld county, you can file your answer to the court using the following language: 

 

Quote

 

The Defendant, [Ryan], answers the complaint as follows:

1.     The amount of damages claimed to be due to the Plaintiff by the complaint in this action is not due and owing for the following reason:

A.    Defendant assert that venue for this action is improper.

15 U.S. Code § 1692i(a)(2) permits Plaintiffs to file where (A) the contract was entered upon or (B) the consumer (Defendant) resides at the commencement of the action. The Defendant never lived in or near Weld County and was served summons at his residence in [Denver?] County. Because the Defendant resides in [Denver?] County, CO, traveling to Weld County for court appearances and filing with the court in person places an undue hardship on the Defendant, the Defendant requests that the Court uphold 15 U.S. Code § 1692i(a)(2)(B) as a matter of determining proper venue.

2.     The Defendant:

A.    Requests Dismissal Without Prejudice based on Improper Venue (15 U.S. Code § 1692i(a)(2)(B)).

B.    Failing a Dismissal or Judgment for the Defendants, the Defendants request a trial to the court.


 

Obviously, you would need to replace everything in [] with the correct information. If you have any other affirmative defenses you want to use, they should be included in your original response in case the judge determines that the venue is proper. Also, note that I recommend using Dismissal Without Prejudice that would permit the plaintiff to refile in the correct county as opposed to With Prejudice that would preclude them from refiling in the proper county. You are welcome to change it to With Prejudice and using the argument that they had one shot at the apple and blew it and shouldn't be allowed to correct their mistake and refile in the correct county, but be aware that most judges are willing to make the plaintiffs actually do their homework and put forth some effort in these cases, but are unlikely to really slap the plaintiff with a with prejudice dismissal unless the plaintiff has a history of making the same mistakes repeatedly. Totally your call.

 

Good luck!

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